The question and answer below addresses an interpretive issue on the SEC’s new hyperlink requirements effective May 2, 2019. For more on the SEC’s amendments, see our previous post that details the rule changes.
Question: The new rules will require registrants to include an active hyperlink to information incorporated by reference into a registration statement or report if such information is publicly available on EDGAR “at the time the registration statement or form is filed.”
How does this new requirement apply to information incorporated by reference from one item to another within the same filing?
For example, is a hyperlink required if the registrant includes a sentence in Item 1.01 of Form 8-K that incorporates by reference the full text of the agreement filed as an exhibit under Item 9.01 of Form 8-K in the same filing? Or is a hyperlink required if the registrant in the legal proceedings item in Form 10-Q incorporates by reference the litigation disclosures in the contingencies footnote in the financial statements?
Answer: A hyperlink would not be required in the above examples. The SEC staff has provided informal interpretive guidance that they believe it is reasonable for registrants to interpret the phrase “at the time the registration statement or form is filed” to mean that such information would need to be on EDGAR prior to the time the registration statement or form is filed.
In other words, an active hyperlink would not be required by the new rules if such hyperlink would be to information within the same filing. The SEC Staff noted that companies are permitted, if technically feasible, to include such hyperlinks to information within the same filing, but that they do not view the rule as requiring this.